Restaurant owner challenges smoking ban
Castaways lights up smoking suit again
By DENISE ZOLDAN, dczoldan@naplesnews.com
September 27, 2005
Just as its court case was about to be snuffed out, an East Naples eatery reignited a federal lawsuit it filed against the state, contending Florida's anti-smoking law is unconstitutional.
Last month, a federal judge in Fort Myers tossed out the case by Castaways Backwater Café Inc., saying citizens may not sue their states.
U.S. District Judge John Steele dismissed the case without prejudice, meaning the suit could be amended. He also wrote in the order that citizens may sue state officers in their official capacities.
And that's what Castaways has done.
In a shotgun manner, Castaways' Naples attorney, Ludwig Abruzzo, has amended the original complaint to include nearly every state officer that has had anything to do with the restaurant case.
Named in the suit are: Simone Marstiller, secretary of the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco; Pat Parmer, director of the Division of Alcoholic Beverages and Tobacco of the Department of Business and Professional Regulation; John O. Agwunobi, secretary of the state Department of Health; and Geoff Luebkemann, director of the Division of Hotels and Restaurants of the Department of Business and Professional Regulation.
Abruzzo said he should have named the officers in the first suit.
"It was an oversight on my part," he said.
The suit alleges that the Florida Clean Indoor Air anti-smoking law violates the equal protection provisions of the U.S. Constitution because it makes exceptions based solely on economic reasons.
Florida's Clean Indoor Air Act allows patrons of bars and outdoor dining areas to smoke, but denies the same right to patrons of restaurants. The Castaways suit alleges that the law does so because bars pay thousands of dollars more for state liquor licenses than restaurants pay for their licenses.
The law is "illegal and invalid in that it contains exceptions to its provision which are based solely on economic considerations," Abruzzo argues in court documents.
Abruzzo contends the state should change the law.
"Either they should not allow anybody to smoke or they should go back to the old ways of having smoking sections," he said.
The state argued in court documents not only that citizens cannot sue their states, but also that "the Clean Indoor Air Act is an exercise of the government's police power, which has historically balanced public health, safety and welfare with private economic interests.
"Castaways cannot seriously contend that Florida's desire to protect nonsmokers from secondhand smoke is not an exercise of the state's police power," the state argued in federal court documents.
The state contends that it doesn't matter whether "economic considerations" were involved, but rather whether the Clean Indoor Air Act is a proper exercise of the state's police power. And that the problem "need not be addressed in a single legislative enactment."
Castaways seafood and Italian restaurant at 2025 Davis Blvd. never has enforced the indoor smoking ban.
The law went into effect in July 2003. The Legislature enacted it after voters, backed by the Heart Association, American Lung Association and other health organizations, passed an amendment to the Florida Constitution in November 2002.
Castaways has been cited three times for violations, but hasn't paid fines because the matter has been in negotiations, administrative hearings and now federal court.
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Judge tosses out restaurant's no-smoking suit against state
By DENISE ZOLDAN, dczoldan@naplesnews.com
September 7, 2005
An East Naples restaurant's fight against Florida's anti-smoking law has gone up in smoke.
At least for now.
A federal judge in Fort Myers has tossed out the case by Castaways Backwater Café Inc. against the Florida Department of Business and Professional Regulation Division of Alcoholic Beverages and Tobacco.
The restaurant sued the state in federal court in June, claiming the Florida Clean Indoor Air anti-smoking law violates the equal protection provisions of the U.S. Constitution, and claiming it makes exceptions based solely on economic reasons.
State lawyers argued in federal court that the Constitution's 11th Amendment means that citizens cannot sue their own states in federal court.
U.S. District Judge John E. Steele agreed with the state's argument.
However, in his order granting the state's motion to dismiss the suit, Steele wrote that citizens can sue state officers in their official capacities.
He then tossed out the case without prejudice, meaning Castaways has until Sept. 20 to amend the suit.
George Waas, special counsel for the state, said Tuesday that if Castaways amends the suit and names the right defendant, "We'll go on from there. It's a procedural thing. You have to sue the right defendant."
On Aug. 13, Gov. Jeb Bush named Simone Marstiller secretary of the Department of Business and Professional Regulation, which is over the Division of Alcoholic Beverages and Tobacco.
Waas wouldn't say who the right defendant is.
"I'm not going to help him out," Waas said.
Naples attorney Ludwig Abruzzo, who has represented Castaways in the suit, could not be reached for comment Tuesday.
Florida's Clean Indoor Air Act allows patrons of bars and outdoor dining areas to smoke, but denies the same right to patrons of restaurants. The Castaways suit alleges that the law does so because bars pay thousands of dollars more for state liquor licenses than restaurants pay for their licenses. The law is "illegal and invalid in that it contains exceptions to its provision which are based solely on economic considerations," the suit contends.
Waas argued in court documents not only that citizens cannot sue their states, but that "the Clean Indoor Air Act is an exercise of the government's police power, which has historically balanced public health, safety and welfare with private economic interests.
"Castaways cannot seriously contend that Florida's desire to protect nonsmokers from secondhand smoke is not an exercise of the state's police powers," Waas argued in federal court documents.
The state contends that it doesn't matter whether "economic considerations" were involved, but rather whether the Clean Indoor Air Act is a proper exercise of the state's police power. And that the problem "need not be addressed in a single legislative enactment."
Castaways seafood and Italian restaurant at 2025 Davis Blvd. never has enforced the indoor smoking ban.
The law went into effect in July 2003. The Legislature enacted it after voters, backed by the Heart Association, American Lung Association and other health organizations, passed an amendment to the Florida Constitution in November 2002. Voters and health-conscious organizations were frustrated with legislators who were unwilling to strengthen what at the time was a voluntary indoor smoking ban.
The East Naples restaurant has been cited three times for violations, but hasn't paid fines because the matter has been in negotiations and administrative hearings and now federal court.
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Restaurant owner challenges smoking ban
June 16, 2005
COLLIER COUNTY- A restaurant in Southwest Florida is suing the state in federal court over the constitutionality of the workplace smoking ban. Castaways Backwater Cafe in east Naples says the ban violates the US constitution because it unfairly applies to restaurants but not bars. Restaurant owners argue the state is worried more about money than protecting peoples' health.
Restaurant owner Jeff Stilwell applauds the cafe that is taking the state to court over the smoking ban. He wants to know if the law is supposed to protect people's health, why it only applies to restaurants, and not bars.
"The way it reads to me now is, if you're smoking around food, it's hazardous to your health. If you're smoking around liquor, there's no problem, no hazard. That's the way the law, technically that's the way it reads. It doesn't make a lot of sense," said Stilwell.
The lawsuit says bars get an unfair advantage because they are granted special exceptions in exchange for paying big bucks for a liquor license. Restaurant owners say a true workplace smoking ban would mean no smoking in bars either.
The groups behind the smoking ban agree it may favor bars over restaurants. They would also just as well see smoking banned at both types of establishments.
The American Lung Association and restaurant owners bitterly opposed each other during the effort to pass the smoking ban.
But the Lung Association's Brenda Olsen says they agree on this one. Bars that are serving anything more than pretzels or peanuts should also be subject to the ban.
"We would encourage the legislature to take another look at the law and remove those unconstitutional exemptions and to go a step further and remove the exception for bars," said Olsen.
The attorney for Castaways says they want to go back to the old system of having no smoking sections, but would settle for a total smoking ban as long as it was enforced everywhere.
The federal lawsuit is the first to challenge the constitutionality of the now nearly two-year-old smoking ban. The state has 60 days to respond.
Since the law went into effect, the state has fined 36 restaurants for not complying with the law.
http://www.nbc-2.com/articles/readarticle.asp?articleid=3638&z=3&p=
Naples eatery sues state over smoking ban
June 16, 2005
An East Naples restaurant is challenging Florida's indoor smoking ban. The Castaways Backwater Cafe is suing the state over its "Clean Indoor Air Act."
The law allows patrons of bars and outdoor dining areas to smoke, but denies the same right to people in restaurants.
The seafood restaurant has never enforced the ban since its inception, arguing that it is unfair.
A spokeswoman for the American Lung Association says legal disputes were bound to happen because the law was written too broadly.
"We have felt like the legislature went too far in terms of adding additional exemptions and was a bit too lenient in defining bars in that piece of legislation," said spokeswoman Brenda Olsen.
The Castaways Restaurant has been ticketed at least three times for violating the ban.
http://www.winktv.com/x15895.xml
Eatery sues, claims smoking ban unconstitutional
June 16, 2005
An East Naples restaurant has filed what may become a landmark tobacco case in Florida -- a suit that contends the state's Clean Indoor Air Act violates the U.S. Constitution.
www.naplesnews.com/npdn/news/article/0,2071,NPDN_14940_3858802,00.html
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